United States District Court, E.D. Wisconsin
Stadtmueller U.S. District Judge.
matters are before the Court, both of which concern Defendant
Armor Correctional Health Services (“Armor”).
First, on March 5, 2018, Armor filed a motion requesting a
stay of this action on the ground that it is presently facing
criminal charges initiated by a complaint issued by the
Milwaukee County District Attorney's Office. (Docket
#54); (Docket #55 at 2). Because of that circumstance, Armor
will likely face a choice between answering Plaintiff's
discovery requests and deposition questions, and thereby
potentially incriminating itself, or invoking its rights
under the Fifth Amendment, and risking the penalty of an
adverse factual inference. See (Docket #55 at 8);
Baxter v. Palmigiano, 425 U.S. 308, 318 (1976).
has not yet responded to that motion. However, on March 8,
Armor filed an expedited motion under Civil Local Rule 7(h)
seeking a temporary stay of all discovery while the Court
considers its earlier-filed motion on the same subject.
(Docket #66). Armor reports that Plaintiff opposes a stay and
has scheduled a deposition of Brian Wenzel
(“Wenzel”), a Milwaukee County Jail correctional
officer, for March 13. Id. at 2. Armor asked
Plaintiff to postpone the deposition until a ruling could be
had on its motion to stay or limit the deposition to topics
not related to the criminal charges against Armor.
Id. Plaintiff refused. Id.
Court will deny both of Armor's motions. First, and
easiest, is the expedited motion. Armor has a Fifth Amendment
right against self-incrimination, but Wenzel is not an Armor
employee and does not speak for Armor. The privilege against
self-incrimination “adheres basically to the person,
not to information that may incriminate him.” Couch
v. United States, 409 U.S. 322, 328 (1973); see also
Johnson v. United States, 228 U.S. 457, 458 (1913)
(Holmes, J.) (“A party is privileged from producing the
evidence, but not from its production.”). In other
words, the Constitution “does not proscribe
incriminating statements elicited from another.”
Couch, 409 U.S. at 328. Thus, the fact that Wenzel
might opine on factual matters tending to incriminate Armor
is not something Armor can forestall by resort to the Fifth
Amendment. Armor's larger request for a stay of all
proceedings is infected with this same overbreadth problem.
importantly, neither the expedited motion nor the
earlier-filed motion to stay convince the Court that a stay
is warranted, even if it was confined to Armor. See
Fed. R. Civ. P. 26(c) (good cause is required to relieve a
party of its discovery obligations); Sec. & Exch.
Comm'n v. Dresser Indus., Inc., 628 F.2d 1368, 1375
(D.C. Cir. 1980) (district courts enjoy broad discretion in
deciding whether a stay is appropriate). The Court will not
entertain a stay of discovery, bifurcation, or any other
alteration of the present course of these proceedings. If
Armor must invoke its Fifth Amendment rights in response to
discovery requests or deposition questions, so be it. The
choice whether to respond is for Armor to make, but
“the fact that a party to civil litigation is faced
with this sort of choice does not automatically entitle him
to a stay of the civil case.” Chagolla v. City of
Chicago, 529 F.Supp.2d 941, 945 (N.D. Ill. 2008);
United States v. Kordel, 397 U.S. 1, 12 n.27 (1970).
factors normally considered in determining whether a stay is
appropriate do not weigh in Armor's favor. Those include:
(1) whether the two actions involve the same subject matter;
(2) whether the two actions are brought by the government;
(3) the posture of the criminal proceeding; (4) the effect on
the public interests at stake if a stay were to be issued;
(5) the interest of the plaintiff in proceeding expeditiously
with this litigation and the potential prejudice to the
plaintiff of a delay; and (6) the burden that any particular
aspect of the proceedings may impose on the defendant.
Cruz v. Cnty. of DuPage, No. 96 C 7170, 1997 WL
370194, at *2 (N.D. Ill. June 27, 1997).
proceedings here are far broader than those implicated in the
criminal complaint, which relates only to a few instances of
falsifying medical records. Notably, none of the incidents
mentioned in the criminal complaint involve Plaintiff or her
childbirth. That makes this case unlike Cruz, where
the civil and criminal proceedings involved aspects of a
single murder investigation. Id. The fact that
Plaintiff's Monell claim may in some sense touch
upon the same topic as the criminal complaint, see
(Docket #55 at 12); (Docket #59 at 2-3), is simply not enough
to intertwine the cases in the Court's estimation.
Because of this, it is of little moment that the criminal
proceedings are brought by Milwaukee County, which is also a
party to this case,  or that the criminal proceedings are in
their infancy. Chagolla, 529 F.Supp.2d at 946. More
crucial to this Court's decision-making are the interests
of the public and Plaintiff in an expeditious resolution of
this action, enshrined in the first of the Federal Rules of
Civil Procedure. Fed.R.Civ.P. 1 (courts must administer the
Federal Rules to “secure the just, speedy, and
inexpensive determination of every action”);
Chagolla, 529 F.Supp.2d at 946-47.
light of these considerations, the burden on Armor is
insufficient to warrant a stay. That same lack of prejudice
means that the Court is obliged to deny Armor's
alternative request for bifurcation of the individual and
Monell claims. See (Docket #55 at 15-21).
Federal Rule of Civil Procedure 42(b) allows bifurcation when
it promotes convenience, avoids prejudice, or expedites
litigation. Fed.R.Civ.P. 42(b). None of those goals are
served by Armor's proposed bifurcation.
branch of the Court rarely entertains bifurcation, even when
one set of claims depends upon determination of another,
again out of respect for Congress' direction that courts
pursue the speedy and inexpensive resolution of civil
actions. See Baires Blue Cross Blue Shield of Minn. v.
State Farm Mut. Auto. Ins. Co., Case No. 16-CV-402-JPS,
2016 WL 4591905, at *4 (E.D. Wis. Sept. 2, 2016); Estate
of Watts v. Heine, No. 07-CV-644, 2008 WL 4056317, at *1
(E.D. Wis. Aug. 25, 2008) (“Given that a court is
expected to act to secure the just, speedy, and inexpensive
determination of every action, bifurcation remains the
exception and not the rule.”). Moreover, in cases like
this one there is an undeniable overlap in the evidence
pertaining to the individual and Monell claims,
making it wasteful to approach discovery piecemeal. See
Baires, 2016 WL 4591905, at *4. Certainly, there is no
general rule, as Armor suggests, that bifurcation should be
the norm in Section 1983 cases involving Monell
claims. See Ojeda Beltran v. Lucio, No. 07 C 6667,
2008 WL 2782815, at *1 (N.D. Ill. July 16, 2008) (district
courts should undertake “a case-specific assessment of
the advantages and disadvantages of bifurcation”).
Thus, the Court will not exercise its discretion to bifurcate
the case, for doing so would avoid negligible prejudice to
Armor at a significant cost to the time and resources of the
parties and the Court.
second matter ripe for decision at this time relates to
Plaintiff's recently filed expedited motion to compel
Armor to respond to several of her discovery requests.
(Docket #60). Armor complains that it cannot present its
arguments in opposition within the space constraints of Civil
Local Rule 7(h), see Civ. L. R. 7(h) (limiting the
motion and response to three pages), and it has filed its own
expedited motion asking the Court to convert Plaintiff's
motion into a regular civil motion, (Docket #63).
request will be denied. Plaintiff is entitled to seek relief
on an expedited basis, and when she does so, she suffers from
the same limitations as does Armor. If Plaintiff can present
cogent arguments in favor of the relief she seeks in three
pages, Armor can argue against them in the same amount of
space. And if the Court finds that the limitations of Rule
7(h) deprive it of the ability to determine whether relief is
warranted, it will deny relief, as it has done in other
cases. See Milwaukee Elec. Tool Corp. v. Chervon N. Am.
Inc., Case No. 14-CV-1289-JPS, 2017 WL 1322183, at *1
& n.1 (E.D. Wis. Apr. 10, 2017).
the issue of Armor's pending requests for a stay, having
been resolved in this Order, will not need to be addressed in
its response to Plaintiff's motion. See (Docket
#63 at 1-2). Finally, to the extent Armor believes that
Plaintiff's Monell claim is overbroad, it is
free to file its own dispositive motion raising that concern.
Id. But that should not be litigated in response to
Plaintiff's motion, for, as the Court recently noted in
addressing a similar dispute between Plaintiff and the
Milwaukee County defendants, a discovery motion is not the
proper forum for narrowing the scope of Plaintiff's
claims. (Docket #59 at 2-3). Thus, the Court will deny
Armor's motion to convert Plaintiff's expedited
IT IS ORDERED that Defendant Armor
Correctional Health Services' motions to stay proceedings
or for bifurcation (Docket #54, #66) be and the same are
hereby DENIED; and
IS FURTHER ORDERED that Defendant Armor Correctional
Health Services' expedited motion to convert
Plaintiff's expedited motion to compel discovery